In Abkari prosecutions, the failure to record a specimen seal in the seizure mahazar and the non-production of a forwarding note creates a fatal defect in the chain of custody, warranting acquittal due to the inability to verify the identity of the seized contraband.

O R D E R

This Criminal Revision Petition has been filed under Sections 397 and

401 of the Code of Criminal Procedure, challenging the judgment of conviction and order of sentence passed against the revision petitioner for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act by the Assistant Sessions Court, Alappuzha, as per judgment dated 23.01.2012 in S.C. No.728/2008, which was confirmed in appeal by the Additional Sessions Court, Alappuzha, by judgment dated 24.10.2013 in Criminal Appeal No.61/2012. The revision petitioner is the first accused in the said case and the second accused was acquitted by the trial court.

2. The prosecution case is that, on 06.05.2005 at about 6.30 p.m., while the excise officials were on patrol duty, they found the accused in possession of 20 litres of spirit and 2 litres of arrack, allegedly kept for the purpose of sale, and engaged in the sale of the same, in contravention of the provisions of the Abkari Act. Thus, the accused is alleged to have committed an offence punishable under Section 8(2) r/w 8(1) of the Abkari Act.

3. During trial, the prosecution examined PW1 to PW5 and marked Exts.P1 to P9. MO1 to MO8 were also identified and marked. After the closure of the prosecution evidence, the accused were questioned under Section 313 of the Cr.P.C., during which they denied all the incriminating circumstances brought out in evidence against them. Since the court found that it was not a fit case for acquittal under Section 232 of the Cr.P.C., the accused were called upon to enter upon their defence and adduce evidence, if any, in support thereof. On the side of the defence, DW1 was examined. However, no documentary evidence was produced by the defence.

4. Upon appreciation of the evidence, the learned Assistant Sessions Judge found the first accused guilty of the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act and convicted him thereunder. The first accused was sentenced to undergo rigorous imprisonment for a period of five months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo simple imprisonment for a further period of two months. The second accused was acquitted.

5. Aggrieved by the said judgment, the first accused preferred Criminal Appeal No.61/2012 before the Sessions Court, Alappuzha. The learned Additional Sessions Judge, who heard the appeal, confirmed the conviction and sentence imposed by the trial court. Aggrieved thereby, the first accused has preferred the present revision petition.

6. Heard Sri. S. Sanal Kumar, the learned senior counsel for the revision petitioner, and Sri. G. Sudheer, the learned Public Prosecutor. The records were also perused.

7. The learned counsel for the revision petitioner submitted that the revision petitioner is wholly innocent of the allegations levelled against him and that both the trial court and the appellate court failed to appreciate the evidence in its proper perspective. According to the learned counsel, the revision petitioner has absolutely no connection with the contraband allegedly seized in the case and has been falsely implicated on mere surmises and conjectures. It was further contended that the search and seizure procedures were not conducted in a foolproof manner, thereby leaving ample scope for manipulation and tampering. According to the learned counsel, the absence of the specimen seal in the seizure mahazar itself creates serious doubt regarding the sanctity of the seizure, and the possibility of subsequent tampering cannot be ruled out. Hence, ther